The Center for Democracy and Technology, a nonprofit public interest group focused on the Internet, was founded by Jerry Berman in Washington in 1994. Berman, who had been executive director of the Electronic Frontier Foundation, saw an increasing need to work through policy channels in the federal government to protect civil liberties in the digital era. Berman is passing on the gavel as CDT’s chairman Tuesday night at the group’s annual dinner, which has become known as the “Tech Prom.” He will remain as chairman emeritus of the organization and will also continue to lead the Internet Caucus Advisory Committee. In an interview with POLITICO, Berman talks about the Internet-era battles over free expression, consumer privacy and limits on government surveillance — battles which groups like CDT are still fighting today.

You’ve been involved in the fight for civil liberties on the Internet longer than most people have. Are things getting better or worse?

Better, I believe. You can’t help but see improvements. We always talk about the Internet as being a democratic medium — one that allows everyone to participate. We have a new equality of condition online where everyone can be a speaker and everyone can be a publisher. We talked about that vision of the Internet from the beginning. But I don’t think anyone believed it would scale this fast and become a community of over 2 billion users.

What about the Internet today most surprises you?

As we go along, we marvel at the technology and at the founders who developed TCP/IP and we see all the great new applications using the Internet. But more than that, what you see happening is a broad democracy and transparency that’s having a profound impact and becoming embedded in our daily lives. The idea that the Internet would be a separate place was something many of the founders in the beginning on the Well, and in EFF, believed would happen. They believed it was a separate place, where they would be able to self-govern and where they would be able to escape. That was an interesting vision, but everybody has adopted the Internet now and it is almost an extension of everyone’s lives. Everyone needs it; everyone is using it.

What first got you interested in the policy aspect years ago?

I read the literature and listened to the debate and people had a tendency to believe the Internet was only technology. Certainly, it’s a miracle of technology. But, in my view, and in a view that many people share, it is also a construct of policy. I have always worked at the intersection between technology and policy. While I embrace the technology and believe in the potential, I really believed from the beginning that we would need a policy architecture to match the technology architecture. That’s why I founded CDT.

The Internet looks free and one can talk about cyberspace being free, but it’s in a highly regulated environment, running over the telephone network. If you wanted to be free and accessible to everyone, you have to work for that. You want to use e-mail — that’s great but if you want e-mail privacy, we have to develop a policy. If it’s a different kind of medium, which we think it is, it still requires persuading the Congress not to pass the Communications Decency Act or persuading the Supreme Court to overturn that law.
If you had to name CDT’s biggest wins, what would they be?

Most definitely the CDA and working with other organizations to persuade the Supreme Court to apply free speech protections to the Internet.

We organized an industry and civil liberties coalition to go in and educate the courts and persuade them this was a new medium. There is a tendency to take openness and freedom of the Internet as a given, as if it was always there. We lost in the Congress but won in the Supreme Court. The whole industry and nonprofits came together on this and it led to a policy decision to allow free speech rights to be extended to the Internet.

This was a global medium with no central gatekeepers. We argued that if you’re going to try to restrict speech, to some worthy end there has to be a compelling interest. If it’s protected speech, you have to impose the least restrictive means available. Censorship of the Internet was not enough of a compelling interest.

What have been the other milestones?

When I talk about the e-policy architecture, one of the critical pieces of legislation happened before the Internet was popularized. The Electronic Communications Privacy Act was a statute that ensured e-mail privacy and privacy for new forms of communications and sets tougher requirements for government to get access to it for wiretapping purposes. That gave e-mail a privacy status and essentially created communications privacy.

Part of the CDA that survived – Section 230, which we helped to draft – is a critical statute that limits the liability of ISPs and social media so that they can build their applications without fear of being held liable. This way, if some consumer writes a comment, intermediaries can promote speech without being liable for what people say. It’s critical to these applications today.

The other milestones include when the administration lifted export controls and allowed for export of stronger encryption.

Whether it’s promoting free expression or lifting export controls, all of these are the product of collaborative work to create this policy architecture. The Internet isn’t just born free; it’s made free.

Some issues we’ve been talking about since I’ve known you, which means for at least a dozen or so years, such as online privacy. Why hasn’t that been resolved?

We have been debating privacy for a very long time. The argument is we need some minimum privacy standard of notice and allowing consumers clear ability to opt in or out across every application. I know there are a lot of people who thought we were likely to see it happen after Obama was elected. And there still maybe a chance for general consumer privacy legislation — maybe.

Particularly for information privacy, all the privacy we have now is guaranteed by law — whether by the Video Privacy Act or the Cable Privacy Act. These are all statutes that were passed with bipartisan support. Industry and consumer groups have been working together on consumer privacy and it’s been very difficult to find that kind of bipartisan cooperation in the consumer privacy area.

I’m hopeful that it still may happen.

While a lot of public interest groups — and industry groups — involved in these debates don’t want to compromise, CDT over the years has gotten a reputation for taking a middle-of-the-road approach in trying to build coalitions. Why does that work?

When you depend on statutes, you need a majority of votes. Consumers can’t get anything done simply by themselves. You need to also work with some representatives of industry to sit down and work things out. You have to find common ground. You do need to try to build consensus and find pragmatic solutions. I will do nothing that will detract from privacy but I will advance my principles in a pragmatic way.

There is no alternative in the American political process to finding a way to reconcile competing interests and get them all to see that it’s in their self-interest to pass a privacy bill. That’s how our legislative process works.

In the Digital Due Process Coalition, CDT has spent years hammering out the principles and is still working to find the bipartisan support necessary to update telecommunications privacy laws. We have conservatives and liberals working together and it’s really a very good coalition we’ve put together but we need to work on the arm-twisting to get bill sponsors in Congress.

After what happened in Egypt and elsewhere in the Middle East, there has been a lot of attention on Internet freedom. How do you think the administration has handled that?

Hillary Clinton and the administration have made Internet freedom a very big issue, and she’s trying to put together a way to fund it, develop it, teach it, find advocates and find ways that technology can circumvent censorship.

That freedom can’t be won by the state department alone, but requires political work and collaboration of everyone in the Internet community. It can’t be a government act. What has to happen if there is going to be global Internet freedom is that it requires coalition building on a global scale. That involves U.S. advocates talking to advocates everywhere and building strong common ground around free expression — and trying to get either the laws passed or people to recognize the kind of policy architecture needed. Whether it’s around human rights principals or free expression, there is an international language for this. Getting it adopted requires global networking and collaboration.

As you pass the gavel, what are you telling your successors about what still needs to be done?

What are the priorities? Still consumer privacy legislation. There is a serious need to deal with privacy in the cloud. We didn’t count on information being stored in the middle of the network when we created our privacy protections. We thought it would rest in an e-mail box or at the computer level. We didn’t assume people would use applications or store documents at the network level. That is where privacy protection is almost zero.

A fundamentally big challenge is global Internet governance and freedom. As the world takes up the Internet, it’s reaching scores of countries with different cultures and making them want to adopt a free expression regime. That requires a global network and the theme of the dinner tonight and [CDT President and CEO] Leslie Harris’s big push is to do more on a global scale so that the Internet will respect free speech and free expression globally to allow the Internet to function globally and prevent it from being broken.

When they asked Benjamin Franklin what he accomplished in Philadelphia, he said, “It’s a Republic, if you can keep it.” For all of us, “It’s an open Internet, if you can keep it.”